What President Biden’s recent Executive Order means for our Environmental Justice work
What is an Executive Order? An Executive Order is a written and signed directive from the President, issuing mandatory requirements for Executive Branches of the U.S. Government (ex. the EPA). Executive Orders – as long as they are in effect and not expired, overridden, or declared unlawful– have the effect of law. This is why strong Executive Orders, that are not broad or vague, can have the ability to effectuate meaningful change.
President Biden signing his Environmental Justice Executive Order on Earth Day 2023.
On April 21st, President Biden issued a new Executive Order (“Order”) addressing Environmental Justice (EJ) titled “Executive Order on Revitalizing Our Nation’s Commitment to Environmental Justice for All.” This new Order takes a necessary “whole of government approach,” meaning that all Federal agencies are directed to review their practices and policies to see how they can better address Environmental Justice. This Order has the ability to advance Environmental Justice across all federal agencies, but it remains to be seen how agencies will actually implement these directives and whether we will see meaningful and enforceable policies to better protect all communities.
1. Government Wide Approach
The new Executive Order aims to tackle Environmental Justice through a “Government Wide Approach,” meaning that all Federal agencies are included in the scope of the Executive Order. For example, agencies are required to identify, analyze, and address disproportionate human health and environmental impacts (including climate change) that Environmental Justice communities face.
This approach also directs agencies to look into relevant legal authorities that impact Environmental Justice communities. Agencies are directed to evaluate current legal authorities and (as appropriate) take steps to address disproportionate and adverse human health and environmental (including risks) impacts that are unrelated to Federal activities that Environmental Justice communities may face. They are also directed to evaluate legal authorities relating to:
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- historical inequities and systemic barriers related to any federal regulation, policy, or practice that can impair Environmental Justice community participation,
- workforce training to support high quality and well paying jobs in Environmental Justice communities, and
- addressing cumulative impacts that can impact human health and the environment.
In sum, this means that the Executive Order has given a green light for Federal agencies to broaden their lenses to meaningfully address environmental justice. It is now up to those agencies to take the steps to do it.
President Biden’s Executive Order invites agencies to identify and analyze the impacts environmental justice communities face in a more holistic way. Photo by Alex Milan Tracy/Sipa USA
2. Cumulative Effects (and science)
A significant directive presented in the Order, and particularly relevant to Crag’s work, is for each agency to analyze and consider Environmental Justice in its National Environmental Policy Act (NEPA) analyses. As Environmental Justice communities and advocates have long known, NEPA is an environmental law that has a real opportunity to protect Environmental Justice communities, but often falls short. Aside from Environmental Justice communities not being given full and due consideration in the public involvement process, when determining what impact a Federal activity may have on the surrounding environment, these communities are often left behind in the determination of what the cumulative effects of a project will be. A cumulative effect is when the health and environmental effects of an action are made even more harmful as a result of multiple different factors. Cumulative effect assessments often do not adequately address Environmental Justice because of a lack of available information and difficulty in understanding intersectionalities of different activities and socioeconomic and environmental factors.
However, with this new Executive Order, each agency shall analyze direct and indirect cumulative effects of Federal actions in Environmental Justice communities, and consider the “best available science and information” on disparate health effects and risks arising from exposure to pollution or other environmental hazards. Notably, the Order in its definition of “information” includes: race, national origin, socioeconomic status, age, disability, and sex of the individuals exposed. Additionally, this Executive Order directs agencies to create a system that provides opportunities for early and meaningful involvement for Environmental Justice communities. Again, it is up to the agencies to determine how far they are willing to push the needle in achieving these principles, but if properly and meaningfully taken to the helm, this would be a step in the right direction towards environmental justice.
With the Order, executive agenies are supposed to consider the “best available science and information” to understand impacts of pollution and other environmental hazards. Photo by Our Children’s Trust.
3. Environmental Justice Strategic Plans
A new program established in this Order is the creation of Environmental Justice Strategic Plans. In an attempt to hold agencies accountable to these Environmental Justice goals, no later than 18 months after the date of the Order (October 2024), and every 4 years after, each agency shall submit an Environmental Justice strategic plan to the Council on Environmental Quality. In this plan, agencies are to include: agency visions, goals, actions, and metrics to fulfill the directives of the order. This can include goals for staffing, policies, regulations, and guidance documents.
This Executive Order asks agencies to submit plans for environmental justice every four years, including their visions and goals. What visions or goals do you have for environmental justice?
The strategic plan also must identify and address opportunities (via regulations, policies, permits or other means) to improve accountability and compliance with any statute that the agency administers that can affect the health and environment of Environmental Justice communities. Examples of this can include: increased public reporting, expansion of pollution measurement or other environmental impact tools, and making sure that remedies provided to Environmental Justice communities are actually effective and deter future violations.
4. Community Notification
Agencies are directed to notify nearby communities if there is a release of a toxic substance from a federal facility. This notification process will allow Environmental Justice communities to have more agency over the actions being taken in their neighborhoods, and should ideally force facilities to be held more accountable in their operations.
Communities need to know when environmental hazards are being proposed in their neighborhoods. Photo by Local Water Alliance.
5. Community & Tribal Engagement
Transparency and accountability are key objectives in the Environmental Justice movement. Environmental Justice communities are often left in the dark with regards to the magnitude of pollution they are exposed to. When Environmental Justice communities speak up, they are often met with bureaucratic non-answers to agency accountability. The Executive Order also acknowledges that Environmental Justice communities have long experienced exclusion from these decision making processes. Thus, the Order directs agencies to conduct meaningful public participation and “just treatment” of all people in these processes.
The Executive Order also highlights the significant importance of Tribal consultation and coordinations, which is to include the strengthening of the nation-to-nation relationships amongst Tribes and the U.S. Government.
As sovereign nations, the federal government must consult with Tribal governments in nation-to-nation consultations. Photo by Blue Ackerman.
We’re glad to see the current Administration take these sustained attempts towards Environmental Justice, but we still have more work to do.
While the directives in this Executive Order set the direction for addressing Environmental Justice more comprehensively, it is up to agencies to see how far they will meaningfully implement change in their practices and policies. An Executive Order like this can have lasting change if meaningfully implemented.
We look forward to working with our clients to make sure that the principles of this Executive Order are given their full potential.
Resources
- Read the full Executive Order here
- Read the White House’s Fact Sheet